The declaration in this case contained three counts. The first was indebitatus assumpsit for money laid out and expended ; the second for money lent, and the third for money had and received. In each of the counts, the promise was alleged to have been made to pay on demand with interest.
One of the counsel for the plaintiffs had proceeded some way in opening the cause, when he was asked by the Court if he expected to prove an express promise or a special agreement to pay interest; this question being answered- in the negative, the Court (Dana, C. J., and Strong and Thacher, justices, present) said the action could not be maintained in its present form, as all the [ * 32 ] * counts stated a promise to pay interest; but they gave leave to amend on the common rule (a).
The rule above referred to is, “ That in all cases (excepting after joinder in demurrer) the plaintiff shall have leave to amend his writ and declaration, upon his paying the defendant his costs, or agreeing to a continuance, at the defendant’s election— provided always that the defendant shall have leave, upon such amendment, to plead »new.”